Johnson & Borenstein has successfully challenged a zoning appeal on standing grounds as well as the merits. In Zuk v. Pairseau, 2018 Mass. LCR LEXIS 15 (Land Ct. Feb. 8, 2018), an abutter appealed a decision of the Town of Danvers Board of Appeals approving a modification of a site plan of a long-existing nursing home which, among other changes, permitted additional parking spaces on the nursing home property. J&B represented the nursing home in the appeal. The Complaint was quite vague on the specific harm alleged, but long on claims of procedural defects in the Board’s hearing process and Decision, namely, that site plan review was required because of 1) a change in use, 2) a purported increase in impervious surface area, or 3) as a modification of a prior approved site plan.

Shortly after the Complaint was filed, the abutter passed away. The Defendants, the Board and the nursing home, challenged the Plaintiff’s standing in a motion to dismiss, arguing that it was impossible for a deceased individual to claim aggrievement. The court ruled against Defendants as the deceased’s son, personal representative of the estate, was substituted as Plaintiff.

The Defendants then conducted discovery, including deposing the son, before reiterating their standing challenge in a motion for summary judgment, which also argued that the Board’s decision was correct on the merits. The son as personal representative of his father’s estate owned the abutting property, and therefore was entitled to a presumption of aggrievement. However, the Defendants successfully rebutted that presumption by demonstrating, through discovery, that the son had no reasonable expectation of proving a legally cognizable injury. The son’s answers to interrogatories and deposition testimony demonstrated that, whatever aggrievement his father may have thought existed, his son was completely unaware of any potential harm to his property as a result of the Board’s decision and relied entirely on his attorney, who was also counsel for his father, to draft answers to interrogatories and to argue aggrievement. In fact, the Court stated that the son did “not articulate[] anything that could be interpreted as a harm to an interest protected by G.L. c. 40A or the bylaw.”

In an unsuccessful bolster his position, the son filed an affidavit in opposition to the defendants’ motion for summary judgment in which he son adopted his deceased father’s statements of aggrievement as set forth in the complaint and in the answers to interrogatories which his counsel had prepared without the son’s input. However, a person cannot contradict by affidavit statements previously made under oath at deposition, O'Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993), and therefore the later efforts were to no avail where the son explicitly testified at his deposition that he had no knowledge of any harm that would result from the Board’s decision. Where the son only claimed “aggrievement on the grounds that the [Board] Decision increases the impact of the facility on the Zuk property and its inhabitants, with no more specificity,” the claims did “not go far enough to allege a harm to a legally protected interest.”

Having decided that the Plaintiff had “utterly failed to articulate any harm from the decision that could be cognizable under G.L. c. 40A or the Town of Danvers Zoning Bylaws,” the Court went on to address the merits of the appeal. The Plaintiff lost on the merits as well, with the Court determining that site plan review was not required as 1) there was no change in use as the nursing home had been operating as such since 1970, 2) the uncontroverted affidavit from Defendants’ engineer stated that there was in fact a slight decrease in impervious area, and 3) there was no prior approved Site Plan for the nursing home property requiring modification. The Plaintiff failed to support his own motion for summary judgment with affidavits (other than son’s affidavit discussed above). Exercising the appropriate deference to the Board’s interpretation of its own zoning bylaw, the Court affirmed the Decision of the Board and dismissed the Plaintiff’s complaint with prejudice. It remains to be seen whether the Plaintiff will appeal.